United States v. Villarreal

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20430 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GUADALUPE VILLARREAL,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-94-CR-158-2 - - - - - - - - - - June 16, 2000

Before JOLLY, DAVIS, and DUHÉ, Circuit Judges.

PER CURIAM:*

Guadalupe Villarreal appeals his guilty-plea conviction and

sentence for conspiracy to possess with intent to distribute

cocaine and for conspiracy to launder drug proceeds. He argues

that he did not waive the right to appeal both his sentence and

the denial of his motion to suppress, that the district court

abused its discretion by denying his motion to suppress, and that

the district court erred by increasing his base offense level

pursuant to U.S.S.G. § 2D1.1(b)(1).

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-20430 -2-

Villarreal’s written plea agreement clearly sets forth a

waiver-of-appeal provision, and the FED. R. CRIM. P. 11 hearing

indicates that Villarreal’s waiver was informed and voluntary.

See United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994).

Villarreal’s waiver therefore bars consideration of his challenge

to the district court’s denial of his motion to suppress.

However, because Villarreal specifically reserved the right to

appeal his sentence if it resulted from a misapplication of the

sentencing guidelines, this court may review his challenge to the

sentencing court’s application of § 2D1.1(b)(1).

Section 2D1.1(b)(1) is applied if a firearm was possessed by

the defendant in relation to the offense of conviction “unless it

is clearly improbable that the weapon was connected with the

offense.” § 2D1.1, comment. (n.3). This court reviews the

district court’s decision to apply § 2D1.1(b)(1) for clear error.

United States v. Devine, 934 F.2d 1325, 1339 (5th Cir. 1991).

Villarreal failed to present any evidence at sentencing to rebut

the presentence report’s (PSR) factual findings that a search of

Villarreal’s residence revealed (1) a loaded pistol and a

quantity of currency on the shelves of the headboard of the

master bedroom’s bed; (2) two scales (one with cocaine residue on

it) found in an undisclosed area of the house; and (3) two money-

counting machines, a rolled-up dollar bill with cocaine residue

on both ends, three drug ledgers, and $1,807,587 hidden under the

insulation of the attic. Accordingly, the district court was

free to adopt the PSR’s findings without further inquiry. United

States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994). Based No. 99-20430 -3-

on the PSR’s findings, the district court did not err by

increasing Villarreal’s base offense level pursuant to

§ 2D1.1(b)(1). The district court’s judgment is AFFIRMED.

AFFIRMED.